THE INDUSTRIAL TRIBUNALS

CASE REF:	707/08

CLAIMANT:			Julia Carson

RESPONDENT:		Creative Interiors (NI) Ltd

DECISION
The unanimous decision of the tribunal is:-

(1)	That the claimant was unfairly (constructively) dismissed by the respondent company, and it is ordered that the respondent company do pay her the sum of £7,989.00 by way of compensation.

(2)	That the respondent company do pay to claimant the sum of £7,480.00 in respect of unauthorised deductions from her wages.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Ms A Hamilton
			Ms M Trimble

Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by John Boston & Company, Solicitors.
The respondent company was not represented at the hearing.

1. (i)	No representative of the respondent company appeared at the hearing.

No communication was received from anyone acting on its behalf.  The start of the hearing was put back by 20 minutes in case anyone had been delayed.

   (ii)	Notice of Hearing was sent to the respondent company on 20 June 2008.

The tribunal was satisfied that it should dispose of the case in the absence of any representative of the respondent company.  It took into account the respondent company’s response in making its decision.

2.	We heard evidence from the claimant, Mrs Carson.  We found her to be an honest witness.  We also had regard to documentary evidence, including bank statements which supported her evidence to the tribunal.  We find the facts set out in the following paragraphs.

3.	The claimant started work with the respondent company on 19 February 2007 and ended her employment with them on 19 February 2008.  We are therefore satisfied that she had one year’s continuous service, something denied by the respondent company.  However, even on the respondent company’s account, she had only four days less than one year’s service and would have been entitled to rely on the provisions of Article 129(4) of the Employment Rights (Northern Ireland) Order 1996 to satisfy the requirement of one’s year service.

4.	The claimant was employed as a Sales Representative.  She was engaged on a salary of £36,000.00 per year.  Her monthly salary was £2,190.00 net, which was to be paid into her bank account.  This was never done.  Such payments as were made to her were paid by cheque, which she lodged herself.

5. (i)	From the outset of her employment she was never paid her agreed monthly wage in full.  For the first three or four months she was paid £1,800.00 per month.  She queried this, but was told that the company was awaiting new business, or a new investment of capital.  Subsequently payments seem to have come even more erratic.  For example, a payment of £1,800.00 in May 2007 resulted in a bounced cheque, there were payments of £1,500.00 and £600.00 in July 2007 and August 2007 respectively, and there was no payment in November 2007.

 (ii)	In December 2007 there was again no payment of wages, though she received a payment of £5,000.00, presumably to go someway towards making up the arrears which were outstanding.

 (iii)	In January 2008 there was again no payment.  When she queried this she was assured it would be paid, but by the time February 2008 came she was told nothing could be done, and consequently she resigned from her employment with effect from 19 February 2008.

6.	We find that at the time she left her employment, there had been unlawful deductions from her wages totalling £7,480.00.

7.	We also find that the circumstances in which she left her employment constituted constructive dismissal.  The non-payment of her wages was a sufficiently serious breach of her contract of employment to justify her in resigning.  She clearly left in response to that breach and we are satisfied that she did not waive it or agree to a new contract.  She depended on her employment to support her family, and had initially no reason not to accept the frequent assurances she had been given about payment being made up when the company’s position improved.  She repudiated the contract as soon as it became clear that these assurances were worthless.

8. (i)	We are satisfied that once her employment ended she took all reasonable steps to mitigate her losses.  She registered with various employment agencies.  In       March – May 2008 she earned approximately £800.00 net per month.

(ii)	In June 2008 she found new employment at £1,485.00 net per month.  She was therefore earning £162.00 per week less than in her previous employment.  Although provision is made in her new contract for bonus payments, she did not have the opportunity to earn such payments initially.

9.	As far as she is aware the respondent company is still trading.  She accepts other staff have left, but not that they have done so because of redundancy.

10.	We now assess her compensation for unfair dismissal as follows:-

(i)	Basic award

	The claimant was aged 41 at the time of			£    310.00
	dismissal, with one year’s complete service. 					She is therefore entitled to one week’s wages up to
	a maximum of £310.00

(ii)	Compensatory award

(a)	Loss of statutory rights				£    250.00

(b)(i)	Loss from the date of dismissal to 		
	start of present job

	In her previous employement she would have
	earned £7,075.00.  We set against this
	the sum of £2,400.00 actually earned in that
	period 	=	£7,075.00 - £2,400.00	£4,675.00

(ii)	In the month of June 2008 she did not have 
the opportunity to earn a bonus in her new 
employment.  Her loss of earnings in this
respect was £648.00				£   648.00

(iii)	We find that although the salary in her new
post  will ultimately equal or exceed her former 
salary, there was a period of 13 weeks from
its commencement until the date of hearing
where she suffered a net loss of 
£162.00 per week.

Her loss in this respect is 13 x £162.00		£2,106.00

(iii)	The total award of compensation for unfair dismissal 
is therefore							£7,989.00

11.	We order as follows:-

(i)	that the respondent company do pay to the claimant the sum of £7,989.00 in respect of compensation for unfair dismissal; and

(ii)	that the respondent company do also pay to the claimant the sum of £7,480.00 in respect of unlawful deductions from her wages.

12.	The claimant did not receive any benefits to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

13.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	24 September 2008, Belfast

Date decision recorded in register and issued to parties: